C. P.] WHITSTABLE FREE FISHERS V. FOREMAN. Lord Bolingbroke being then seised of the manor, did, on the 13th Nov. 1775, by deed of deputation, direct his water-bailiff to collect anchorage, &c., from vessels arriving and anchoring on the manor of Whitstable. The special case also included the local Act of Parliament by which the pits. were incorporated (33 Geo. 3, c. 42, and also the various conveyances by which the plts. became possessed of their oyster fisheries and the manor of Whitstable. This Act and these conveyances formed the evidence upon which a previous case of Gann v. The Free Fishers of Whitstable was decided: (See 9 L. T. Rep. Ń. S. 263.) [C. P. on the high seas, such charter would be void, and a grant of such charter cannot be presumed. 4. That the public have the right to navigate the high seas without any exaction or tolls being made or imposed upon them, and the Crown had no power to impose any toll on the public for passing or anchoring on the high seas without the authority of Parliament, unless the public have a quid pro quo. 5. That there is no consideration shown for the tolls claimed. 6. That the soil of the sea where the deft.'s vessel was anchored on the 27th Nov. 1860 was not the property of the plts., and was not within the limits of the anchorage-ground upon or in respect of which the plts. claim a right of toll. 7. That, for the like preceding reasons objected to the tolls claimed on the 14th Sept. and 31st Oct., the plts. are not entitled to claim the toll on the 27th Nov. 8. That the plts. have no right to any payment for anchorage as stated in the case, and the deft, or his vessel was not liable to the payment of any of the said tolls for the said anchorage. 9. That the plts. have failed to show any sufficient right or title at law to any claim for such anchorage as stated. 10. That the deft. is entitled to the judgment of the court upon the case as stated. The question for the opinion of the court was, whether the plts. were entitled to recover the said anchorage tolls, or any or which of them from the deft. The plt.'s points for argument were: 1. That the plts. are entitled to the sums claimed by them for anchorage. 2. That the immemorial payment being found, no intendment that it was illegal can be made, and the facts stated in the case, coupled with its immemorial existence, are sufficient to support it, or, at all events, sufficient to throw upon the deft. the onus of proving that the payment was originally illegal, or without consideration, and ought no longer to be made. 3. That the case Mellish, Q. C. (with him Denman, Q. C. and Rayshows that the anchorage ground was the soil of mond) for the plts. This question of the pits.' right the plts., and was within the precinct of a port, or to anchorage dues in the harbour of Whitstable has harbour, or haven. 4. That the case shows that before been raised in the case of Gann v. The Free some service or aid in navigation was rendered to Fishers of Whitstable, which was decided against the the public. 5. That the case shows that the pay-pits. by the H. of I, 11 H. L. Cas. 192; 20 C. B., ment for anchorage was due by right as a compensation for the injury to the brood of oysters by anchoring within the limits of the oyster fishery. 6. That the fact of the payment having been made from time immemorial, coupled with the contemporaneous existence of the oyster beds within the anchoring ground, is sufficient to support the inference that the payment was made as compensation for keeping up buoys and beacons to denote the position and limits of the oyster beds, and thus the better to enable persons coming to anchor within the limits of the oyster beds to avoid injuring the oysters. 7. That the payment may have been originally made for the maintenance of a light to assist persons seeking the harbour or anchorage ground, a supposition supported by the maintenance by the plaintiffs of a light within the time of memory. 8. That the facts stated in the case, coupled with the immemorial payment, are sufficient to negative the illegality of the claim, and that it was not founded on sufficient consideration. 9. That the onus of proving that this payment, made from time immemorial, is illegal, or without consideration, lies upon the defendant, and the facts found in the case do not prove its illegality, or that it was without consideration. 10. That no title founded on immemorial enjoyment would be secure if the onus of proving that it had a valid origin could be thrown upon its possessor by any one choosing to challenge it. 11. That it is more cousistent with the facts found in the case that the claim is lawful than unlawful, because if unlawful it could and would have been successfully resisted when first set up, and its continued existence down to the present time proves either that it was never disputed, or disputed unsuccessfully. The deft.'s points for argument were:-1. That the soil of the sea where the app.'s vessel was anchored on the 14th Sept. and 31st Oct. 1860 being below low water-mark was vested by law in the Crown, and the claim for anchorage was invalid. 2. That the Crown holds such soil of the sea as trustee for the public, and could only grant such soil to a subject subservient to the public rights. 3. That if any charter was ever granted by the Crown affecting to grant of take toll for anchoring N. S., 1; and 12 L. T. Rep. N. S. 150. See the case in Ex. Ch. reported 9 L. T. Rep. N. S. 263. The difference between that case and the present is that we then claimed the dues on the ground of our possession of the soil, which was held to be insufftcient; we now base our claims upon immemorial usage, and in consideration for the benefits we have done to navigation. The points for the Court to decide are whether the consideration alleged is sufficient for our claim of tolls, and whether the evidence produced is sufficient to show this consideration. My argument is that before the time of legal memory the soil of the oyster ground, and also of the anchorage ground, was granted to the lord of the manor; that from time immemorial there was a port at Whitstable, and that the lord of the manor kept up buoys and lights between the oyster ground and anchorage ground; perhaps chiefly to protect the oysters, but also to assist the public in steering to the anchorage ground. The special case as it is now drawn up contains all that was said in the judgments of the H. of L. would be sufficient to substantiate the claims of the plts. The Mayor and Burgesses of Lyme Regis v. Henley, Hale de jure Maris, pp. 46, 72, 74; Prentice, Q. C. (with him F. M. White) for the deft.-It must be taken for granted since the decision of the H. of L., that the Crown has power to grant the soil of a port, subject to the rights of the people; but there is no case in which anchorage dues have been granted by the Crown. An anchorage cannot be claimed by prescription, because it is a public right; this was held in the case of the Mayor and Burgesses of The Town of Nottingham v. Lambert, Willes Reps. 111. As a matter of law, the considerations alleged on the other side are not sufficient to establish the pits.' right to these anchorage dues. The Crown holds the soil of the sea as trustee for the nation, and cannot grant tolls except in consideration for some public benefit: Com. Dig. Prerogative" D., and Toll" C.; C. P.] Bac. Abr. "Customs," D.; Vinkinstone v. Ebden, Car. 357. Mellish, in reply, cited WHITSTABLE FREE FISHERS v. FOREMAN. The Mayor of Exeter v. Warren, 5 Q. B. 773: Cur, adv. vult. July 8.-The judgment of the court (composed of the Lord Chief Justice, Willes, Keating, and M. Smith, JJ.) was read by BOVILL, C. J.-The right claimed by the plts. in this case is similar to that which was in question in the case of The Free Fishers of Whitstable v. Gann, namely, the right to have anchorage dues from all vessels casting anchor on land covered by the sea, called the Anchorage Ground, near to Whitstable. In the former case, the right was sought to be maintained by reason of the ownership of the plts. in the soil upon which the anchors were cast; it was supported upon that ground by this court, and again in error by the Ex. Ch. The H. of L. decided that the anchorage ground, not being shown to be within or belonging to a port, but being a part of the sea where all persons would have a right to navigate, and as incidental to such right to cast their anchors there, the right claimed by the plts. could not be supported in respect of the mere ownership of the soil, and they decided that such a right required some consideration or advantage by the public to support it. The plts.' case being on that occasion based upon their ownership of the soil, their evidence was directed to that point only, and no facts appeared from which their claim could be supported on any other ground; and the ultimate decision, upon the statement of that case, was adverse to the plts. The present case is brought before us in a different form, the claim not being now based upon the mere ownership of the soil; and we are called upon to decide whether, under the circumstances set forth in the special case, the plts. have established a right to this payment. No claim is made in respect of that part of the ground sold to the South-Eastern Railway Company, nor has any distinction been made between the part above and that below the ordinary low-water mark, and, indeed, no such distinction could properly be made. On the present statement of facts it appears that the payment of the anchorage due has been made and received from time immemorial, in respect of all vessels casting anchor within the limits of the anchorage-ground. That ground appears to have been parcel of the ancient manor of Whitstable, and there are oyster grounds on the outside of the anchorage ground belonging to the lord as part of the manor; and from the statement in the case, and the recital in the Act of Parliament in 1793, both are taken to have existed from time immemorial. There was also in ancient times, a place within the manor for the unloading of merchandise, and from a quo warranto in 21 Edw. 1, it appears that the lord of the manor of Whitstable was entitled to take toll at a place called Le Craston within the manor, and although the precise locality of that place is not known, yet from the commission and proclamation in 2 Edw. 1, referred to in the special case it seems to have been somewhere between Reculver and Whitstable. There is also a reference in the Act of 1793, to "customary payments usual and of right made to the lord of the manor for or on account of any ship or vessel in the landing of goods and merchandise within the said manor. From the commission in 7 Eliz. it further appears that at that time Whitstable was a port in the sense of being a creek of the port of Sandwich; [C. P. it had not any officers of customs, but was a place for landing and delivering wares and merchandise, and the Royal commissioners returned that it should be discontinued or utterly damaged as a place for transporting wares and merchandise beyond the seas, although they thought it meet that it should be maintained and used for transporting wares and merchandise from one part of the realm to another, making certificates to the next port or creek adjoining where the customs officers were resident. There can be little doubt, therefore, that in very early times there was a port of Whitstable for loading and unloading of ships on the present anchorage ground; and it being protected from storms, would no doubt be frequented by vessels coming to the port as a safe and convenient place of anchorage. There is no evidence, however, to show that this anchorage ground was within or connected with the port, or that the franchise of the port was ever granted to any one by the Crown. The evidence seems satisfactorily to show that the lord was the owner of this landing-place, and took toll on merchandise thereto, and also the owner of the anchorage ground, and took dues as lord of the soil. The old anchorage, before the sale to the railway company, was protected on the north and east by banks partly grass, partly shingle and stone; those banks were known by the name of the Ridge and the Strett, and extended on either side to the sea beach and the main land, and the part thus protected afforded a comparatively safe anchorage for ships. There appear to have been fisheries belonging to the manor as far back as the 22 Hen. 8., and the oyster beds belonged to the plts. The plts. also maintained poles, buoys, and beacons, to mark the boundaries of the oyster fishery, and to prevent vessels anchoring and grounding upon the oyster beds; and the buoys and beacons also marked the position of the banks and the limits of the anchorage ground. They indicate the channel for entering at a place called the Eddy-hole, and enabled vessels to avoid the shoal banks by which the anchorage ground is protected, and point out the channel for vessels of a light draught of water. Some stress was laid by the deft. upon the fact of the free fishers having maintained the buoys before they became entitled to the fishery and the anchorage ground. But little weight is attached to that, because, according to the Act of Parliament, they carried on the fishery as tenants under the lord long before they became purchasers of the fee. The public, navigating the sea and coming to Whitstable, had, therefore, the use of the soil belonging to the plts. for the purpose of casting anchor, and of grounding upon it as the tide falls; and the channel to the anchoring ground through the place mentioned above, as pointed out by the buoys and beacons, is maintained at the plts.' own expense; and vessels can remain there protected by the bank from the storms of the sea in comparative safety and in a convenient place. There was, also, the statement that rights had been maintained at various periods, but that was not much pressed in the course of the arguments, and does not, in our opinion, materially assist the case of the plts. There is no evidence to show when or how these banks which protect the anchorage ground first came into existence; nor does it appear whether they were artificially made or mere natural banks thrown up by the sea. If they were originally made and partly formed by the former owner of the ground so as to create a protection to ships, they have been ever since, and still are maintained by the natural action of the sea; there is no reason why the original construction of these banks should not be a sufficient consideration for the payment of the anchorage due by all vessels anchoring at this place and enjoy. ing the advantages of this protection; and where such payment has been made from time immemorial it is not unreasonable to presume that it had its origin in that way. It is not necessary to rest the case upon any such presumption, because, in our judgment, the maintenance of the buoys and beacons, and the advantages which the public derive therefrom, taken in connection with the ownership of the soil of the anchorage ground, are quite a sufficient consideration to support the legality of the present claim. The payment having been made from time immemorial, it ought to be referred to a legal origin, if there be anything to support it; and it may, in our opinion, well be referred to those services which have been performed, and the advantages which the public have enjoyed, which we have already adverted to, and which have existed throughout legal memory. And we think that this case is entirely in accordance with the decision of the H. of L.; because, after basing his judgment upon the ground that the claim could not be supported alone upon the ownership of the soil, Lord Westbury, L. C. says:-"If it may be claimed as an ancient anchorage due, some facts must be shown which either prove, or from which it can be inferred, that the toll claimed by the resps. was originally within the precincts of the port or harbour, or that some service to navigation was rendered to the public, in respect of which the alleged toll was paid. But nothing of the kind appears, and no such case can be presumed from the mere fact of an immemorial payment. No such case is made by the resps., and the payment is demanded merely upon the ground of its having been immemorially paid to the lords of the manor of Whitstable in respect of the ownership of the site of an ancient oyster fishery now vested in the resps." Lord Wensleydale was likewise of opinion that a consideration must be shown by some advantage having been conferred upon the public, or by the payment being a compensation for injury to the fishery; and Lord Chelmsford considered that the creation and erection of a port, would be in itself a sufficient consideration for such a payment. It was laid down in that case, in accordance with previous decisions on similar rights depending on long enjoyment, that every intendment ought to be made in favour of a payment which has been uninterruptedly received time out of mind, and that it is the duty of the court when a case admits of it, to find a legal origin for a right so long enjoyed. In the previous case no consideration was attempted to be shown for the payment, and no facts proved from which it could be inferred. There were no facts or circumstances to warrant a presumption that any corresponding benefit was given to the public for the imposition of the dues, and the case failed upon that ground; Lord Wensleydale, feeling probably there were other circumstances that could be proved, was desirous that the case should be sent down for a new trial, and said his own notion was, that it was consistent with the statement in the case, as it appeared, that some legal ground might be found for the establishing of a right to the anchorage due. Upon the statement of the case now before the court, it seems to us that the defect which existed in the former case has been supplied. The buoys and beacons have been maintained from living memory, and we think we ought to presume that they have existed from time immemorial; and when we find that anchorage dues have been received during the same period, and therefore ought to be referred to a legal origin, we consider that the maintenance of these buoys and beacons may be treated as a consideration for the payment that has been so immemorially made, and so would be a benefit to navigation by pointing out the anchorage-ground and the safe entrance to it. We think that would in point of law be a sufficient consideration to support the claim. Even if they was [ADM. were maintained wholly and solely for the purpose of preventing vessels grounding upon the oysterbeds, it is not certain that they might not be a sufficient consideration, upon the principle stated by Lord Wensleydale, where he says: "It might also be due by right as a compensation for injury, by anchoring within the limits of the oyster fishery, to the breed of oysters. The grant of an oyster fishery beyond the time of legal memory, which would require expense and trouble to establish and keep up, would, I am strongly inclined to think, justify the imposition of such a toll within the limits where oysters were placed to breed. And Coleridge, J., a very able judge, in the case of The Mayor of Colchester v. Brooke, thought that the parties might be liable by ancient custom to pay to the lord of the manor a reasonable payment, as the owner of the soil, for grounding on the soil.' In the present case, it being proved that Whitstable a creek of the port of Sandwich, and although in the reign of Elizabeth it was discontinued as a place for foreign dues, it was continued as a place for the coasting trade, and as the anchorage ground was close to it, it is possible that the right might be supported on another ground suggested by Lord Wenleysdale when he says, "It may be that the company of dredgers may have had the anchorage assigned to them beyond the time of memory by the owner of the port, who may have had the right of anchorage by virtue of his right to the port." Our judgment, however, is founded on the grounds already stated, the maintenance of the buoys and beacons in connection with the plaintiffs' ownership of the soil and their uninterrupted enjoyment of the anchorage due from time immemorial. There is no reason shewn why the payment should not have had a legal origin. Very slight evidence is, according to our notion, necessary in order to support a right which has been uninterruptedly enjoyed from time immemorial, the legality of which we are almost bound to presume. We consider the circumstances altogether to be sufficient in our judgment to support the claim, and that the plts. are entitled to our judgment. Judgment for plts. Attorneys for plts., Nethersole and Speechly. Attorney for deft., E. E. Towne for J. Towne, Margate. COURT OF ADMIRALTY. Tuesday, March 12, 1867. Mortgagees are entitled to priority over material-men, whose claims arise after the registration of the mortgages, unless the material-men have acquired a possessory lien. Where a graving-flat was attached to a vessel, and chisels and other implements were on board at the time of arrest, the property of the material-men, it was Held, that these facts were inadequate to prove possession. This was a motion for the payment of two mortThe gagees in priority over the material-men. facts are detailed in the judgment. Bayford, in support of the motion, cited, May 9 and June 18, 1867. [ADM. The Hull Pilot Act-2 & 3 Will. 4, c. 105, ss. 22 and 89 Where a vessel which was being towed from one dock to Dr. LUSHINGTON gave judgment as follows:-In | and he and those persons whom he represents secm the month of June 1865 8-64ths of the Scio, a to have done no more than advance money and British vessel, were mortgaged to J. Donthwaite, to supply rope, ironwork, provisions, &c., for the secure 624, and in July 40-64ths were mortgaged repairing and equipping of the vessel. The case of to J. Young to secure 300%. In Jan. following Mr. Hutchinson, the shipbuilder, is somewhat dif(1866) the Scio put into Lowestoft Harbour in a ferent. When he commenced the repairs on the disabled condition, and from that time to June fol- Scio she was lying in the graving-dock on the north lowing she remained there undergoing repairs; the side of Lowestoft Harbour. She was then removed persons who performed the repairs and supplied the to the south side of the harbour for the purpose of necessary materials were Mr. Hutchinson, ship-again taking in part of her cargo, which had been builder, and Mr. Rounce, whose firm were the previously discharged there, and Mr. Hutchinson authorised shipping agents for the club at Scar- continued to repair her whilst lying there. Subseborough in which the vessel was insured. The quently she was taken to deeper water on the north owner of the vessel was insolvent, and early in June side, where she was still lying when she was arrested. Mr. Donthwaite, as one of the mortgagees, came On behalf of Mr. Hutchinson, it is deposed that at the down to Lowestoft to take possession of the vessel, time of the arrest his graving flat lay between the and proposed to remove her without paying the quay and the vessel, and was attached to the vessel debts which had been incurred on the repairs of by chain and rope painters, and floated close to her the vessel. A dispute thereupon arose between to enable the workmen to execute the external him and the master, Mr. Leadley. On the 16th repairs about the hull. Also, that there were on June the master instituted a suit, No. 3341, board of the vessel chisels, chains, and other impleto recover his wages and disbursements, and arrested ments and materials belonging to Hutchinson. the vessel and also cargo for freight. On the 18th These statements are disputed; but, supposing them Mr. Hutchinson and Mr. Rounce instituted another to be true, I think them quite inadequate to esta suit, No. 3343, to recover their debts under the 4th blish that the vessel was in possession of Mr. section of the Admiralty Court Act 1861, which Hutchinson so as to give him a possessory lien over gives to the court jurisdiction on any claim for the her. He therefore, as well as Mr. Rounce, must building, equipping, or repairing of any ship, if at submit to have his claim postponed to those of the the time of the institution of the cause the ship or mortgagees. the proceeds thereof are under arrest of the court. The owner of the vessel has not appeared, but both suits are defended by the mortgagees, Messrs. Donthwaite and Young. The vessel has been sold under order of the court; the net proceeds of vessel and freight amounted to 455l., whilst the total of the claims against them exceed 1000l., as follows:Marten, 1744. 1s. 10d.; Hutchinson, for repairs, 2891. 5s. 3d.; Rounce and others, 2672; J. Young, mortgage, exclusive of interest, 3004; Donthwaite, ditto, 621; total, 10921. 7s. 1d. Under these circumstances the mortgagees, Messrs. Young and Donthwaite, in November last, made motions in the suit 3341 to have their mortgage debts, &c., paid out of the proceeds in priority to any payment to Messrs. Hutchinson and Rounce, who had supplied the repairs and materials to the vessel, and who were the plts in the suit 3343. The court directed the motions to stand over until a statement of the facts relative to the question in dispute should have been filed. The parties failed to carry out this order, having, I presume, been unable to agree upon a statement, and accordingly, instead of a statement, a number of conflicting affidavits have been filed. It might have been satisfactory to have had an Act on petition in this case, but considering the small value of the property at stake, and the expenses already incurred in litigation concerning it, I am to decide the case upon these affidavits if they furnish the necessary materials for a judgment. As between the mortgagees and the master there is no dispute as to priority. The question is as between the mortgagees and those who repaired and refitted the vessel. If these men had simply supplied materials to the vessel, then (as established in the Pacific, 3 New Rep. 709) their right in rem to the proceeds of this vessel and freight commenced only upon the institution of their suit in June last, and consequently would be posterior to the right of the mortgagees, whose mortgages were registered in the months of June and Sept. 1865. If, on the contrary, the vessel at the date of her Dr. LUSHINGTON (having first recapitulated the arrest was in the actual possession of the ship- facts) said:-The section chiefly to be considered is builder, Mr. Hutchinson, then by the common law the one which gives authority to appoint pilots, riž, he would have a possessory lien upon her which the 22nd. That section closes with these words: could not be displaced by the mortgagees: (Wil-"All ships and vessels sailing, navigating, and liams v. Allsopp, 4 L. T. Rep. N. S. 550. Now Mr. Rounce was never in possession of the vessel. He was, as I have stated, the agent of the underwriter, Held, that the vessel was neither "passing into or out of" the port under the 22nd section of the above Act, bound to or from" the port within the 89th section; the pilotage, therefore, not compulsory. On May 9th a cross cause of damage between the Richard and the Maria was heard by Dr. Lushing ton, assisted by Trinity Masters. It appeared that on the 5th Jan. last, the Maria, having on board a duly licensed Humber pilot, while being towed from the Victoria Dock at Hull through the Hall River, and through the old harbour into Humphrey's dry dock, came into collision, at the Victoria Jetty, which is at the entrance of the Hull river into the Humber, with the Richard, which was at anchor. There was a heavy gale at the time, by the force of which the Maria was driven against the Richard. There was also another collision next morning, and some damage was done to the Richard, on account of which her owners instituted this cause. The owners of the Maria also brought a cross cause against the Richard. At the time of the collision the Maria had finished her voyage, her cargo had been delivered, and her crew discharged. At the hearing, the Court held that the pilot of the Maria was solely to blame for the collision, and took time to consider whether the pilotage was compulsory. On June 18th judgment was given. passing as aforesaid, except as hereinafter provided, shall be conducted and piloted within the limits aforesaid by pilots so licensed, and by no other pilots ADM.] THE ARGENTINA. [ADM. or persons." The exceptions made in a subsequent | of expediency. On this point the case is of Rodriguez part of the statute, are of vessels not drawing v. Melhuish, 10 Ex. 110, appears to be an applicable more than six feet of water, vessels putting in for authority. That was a case under the Mersey Pilot shelter, &c.; they clearly do not apply to the Maria, Act which made pilotage compulsory "in the case and therefore need not be considered here. The of the master of a vessel outward bound when he question is, what is the meaning of the words shall proceed to sea." The facts were, that the vessels sailing, navigating, and passing as afore- vessel being under contract with the Post Office to said." The section commences by reciting that go to sea on the 4th Dec., was, on the 2nd, taken the corporation of the Trinity-house in Kingston-under charge of a pilet out of the Prince's-dock at upon-Hull had been previously empowered to Liverpool, and towed by a steamer up the river, and appoint pilots to conduct ships and vessels sailing there anchored; that on the 3rd, whilst she was or navigating into and out of the port of Kingston- anchored, the pilot being on board, and also riggers to upon-Hull, and in the limits and liberties thereof, complete the rigging, but the master being on shore, and into and out of, and upon the river Humber, the boat of the plt. was in some way swamped by the and from the said river out to sea, and between vessel and by the vessel's fault. The Court of Ex. Flamborough Head northward, and Winterton Nets were unanimous in holding that the pilotage was southward, and into and out of the several ports, not compulsory, because the vessel was not at the creeks, harbours, and places situate between those time proceeding to sea; and in delivering judgment two last-mentioned headlands or places;" and then the Chief Baron is reported to have said: "It enacts by giving power to the same guild to license might have been better, and the provisions of the pilots "for conducting ships or vessels 'into and out Act would have been more symmetrical (if I may of the port of Kingston-upon-Hull, and of the port be allowed the expression), if the duties of the pilot of Great Grimsby, and upon any part of the river and of the owner in the case of a vessel going Humber below the said port of Kingston-upon-Hull, outwards had been correlative with those of a vessel and so far out at sea as and also so far along inward bound. It is likely to be a more difficult the coast as " It is argued on behalf of the undertaking to take a vessel out of the dock and owners of the Richard that the taking a pilot under into the river than taking her out to sea. But we the circumstances is not compulsory; that the words do not sit to make law, but to declare it as we find in the enacting part into or out of "the port of it." Moreover, it seems to me that the navigation Hull," cannot mean within the limits of the port, of inward or outward-bound vessels into or out of and must refer only to inward or outward bound a port and the navigation of vessels within the vessels; to vessels coming from outside the limits, limits of a port are not necessarily upon the same or going to a place outside the limits of the port. footing with regard to compulsory pilotage, for by That the Maria was neither inward nor outward bound, the 362nd section of the Merchant Shipping Act it but passing from one part of the port to another. is provided that "an unqualified pilot may within They further insist that this construction of the any pilotage district, without subjecting himself or section is corroborated by the elaborate provisions his employers to any penalty, take charge of a ship made in the 40th and 41st sections for the distance as pilot for the purpose of changing the moorings to which outward bound ships, and the places to of any ship in port, or of taking her into or out of which inward bound ships are to be piloted, and any dock, in cases where such an act can be done also by the careful definitions in the 89th section of by an unqualified pilot without infringing the the term inward and outward bound vessels. On regulations of the port or any orders which the the other hand the owners of the Maria contend harbour master is legally empowered to give." I that the Act contains no words expressly limiting am unable to hold that the Maria, being towed from its application to inward or outward bound vessels, one dock to another in the port of Hull was either and that the words of the 22nd section are large a vessel passing "into or out of" the port within enough to apply to vessels navigating within the the terms of the 22nd section, or a vessel “bound port of Hull. It was also suggested that, even on to or from" the port within the terms of the 89th the supposition that the Act was confined to inward section. I am, therefore, of opinion that under the or outward bound vessels, the Maria would come circumstances pilotage was not compulsory upon within the definition of these vessels contained in the Maria, and that she is liable for the damage she the 89th section, namely, " vessels bound to or from has occasioned to the Richard. the said port of Kingston-upon-Hull, or to or from some other port or place situate on the said river Humber, or some or one of the several rivers and streams flowing into the same, or to or from some one of the several roadsteads in the said river Humber," because the Maria was going from one place on the Hull (which flows into the Humber) to another place on the Hull. But as both the Victoria Dock from which the Maria was going, and Humphrey's Dry Dock to which she was going, and the whole of the intervening course lie within the limits of the port of Kingston-upon-Hull, it is clear that if the 89th section bears upon the case of the Maria at all, it is by virtue of the words "to or from the said port of Kingston-upon-Hull." The owners of the Maria further contended that the case falls within the scope of the Act, because the same considerations apply as to vessels outward or inward bound: the Maria passing from the Victoria dock to Humphrey's Dry Dock would have to pass down, in part at least, the same intricate channel as an outward or inward bound vessel, and would equally require pilotage in order to navigate safely herself, and not to do injury to other shipping in the river. I do not, however, consider that the urt can give much weight to these considerations Proctors: for the Richard, Coote; for the Maria, Clarkson, Son, and Cowper. June 1 and 18, 1867. 24 Vict. c. 6-Bill of lading-Agent-Assignee for value. G., a merchant of New York, shipped to Bristol in the vessel Argentina three parcels of oilcake, two parcels for G. senior, his correspondent there, and the third for S. The bills of lading for all three parcels in triplicate he sent to G. senior, with strict injunctions not to part with the bill of lading of S.'s parcel to him without first receiving payment. G. drew a bill of exchange for the whole value of the parcels on G. senior, which was discounted. S. subsequently induced G. senior to deliver to him his bill of lading on giving a bill of exchange drawn on one Stiles, and a promise of immediate payment of the cash. having endorsed the bill of lading to R. for value, became bankrupt, as also did Styles. On the arrival of the vessel, R. had notice served on the master not to deliver the goods but to his order. G. senior presented one of S. |